officers, and certainly known to at least Wentick. As those concerned at Suffern, when the tin was missed, expressed the opinion that it went back to Passaic in the Ford car, it was natural for Veech to try to locate it and secure it, and defendant's presence under such circumstances does not permit an inference of guilty knowledge. He had nothing to do with the disposition of the tin after that; and, when he told the police officials the next day that he did not know where it was, he spoke the truth, and performed his whole duty in referring them to Veech, in whose possession he had last seen it.

The district attorney's theory seems to be that defendant went with Veech to Suffern for the purpose of aiding him in stealing the tin. This is a remarkable theory. The tin had already been stolen, reclaimed, and was in the custody of a detective of the Erie road. Each block was a bulky and heavy object. Veech was then under suspicion, and, to reduce the matter to an absurdity, they took with them two police officials, against whose character nothing can be said on this record, either to watch them steal the tin, or, as hinted by the district attorney, to aid them in doing it.

[2] We think the conviction a miscarriage of justice. It rests on "suspicion light as air." The evidence was as matter of law insufficient to exclude reasonable doubt, and as this is a matter for the court to decide (People v. Ledwon, 153 N. Y. 10, 46 N. E. 1046; People v. Gluck, 188 N. Y. 167, 80 N. E. 1022), the judgment of conviction should be reversed and the defendant discharged. All concur.

MILLER et al. v. WINDHOLTZ et al.

(Supreme Court, Appellate Term, First Department. July 25, 1919.)

1. DAMAGES 123-MEASURE OF DAMAGES ON BREACH OF WARRANTY.

In an action for breach of warranty in failing to dye skins in accordance with contract, plaintiffs, having elected to sue on the contract, not in disaffirmance, must credit defendants with the contract price of the work, and cannot recover undiminished the difference between the market value of the skins as delivered to defendants and their market value had they been dyed in accordance with the contract.

2. TRIAL 26-ON NEW THEORY OF DAMAGES AND AMENDMENT, DEFENDANT ENTITLED TO ADJOURNMENT,

In action for breach of warranty in failing to dye skins in accordance with contract, where plaintiffs abandoned an incorrect measure of damages, and undertook to prove the difference in the respective market values of the skins as they were and as they should have been, though the allowance of plaintiffs' amendment to conform with the proofs may have been proper, defendants should have been granted an adjournment to get an expert witness to meet the new theory of damages.

Appeal from Municipal Court, Borough of Manhattan, First District. Action by Jacob Miller and another against Harry Windholtz and another. From a judgment for plaintiffs, defendants appeal. Re

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (178 N.Y.S.)

versed, and new trial granted, unless defendants stipulate to allow judgment to go against them.

Argued June term, 1919, before GUY, BIJUR, and MULLAN, JJ. Samuel H. Hofstader, of New York City (Gerald B. Rosenheim, of New York City, of counsel), for appellants.

Koppelman & Weinberg, of New York City (Abraham P. Wilkes, of New York City, of counsel), for respondents.

BIJUR, J. Plaintiffs sued for what in the complaint is denominated defendants' breach of warranty in failing to dye certain skins belonging to plaintiffs in accordance with the requirement of the contract between them. The skins were to be dyed to colors known respectively as "Kolinsky" and "Sealine." It is conceded that defendants would have been entitled under the terms of the contract to some $323.50, if the work had been properly done, and for this amount the defendants interposed a counterclaim.

[1] The learned judge below gave plaintiffs judgment for the full damages claimed, namely, the difference between the market value of the skins as they were delivered by defendants and their market value, had they been dyed in accordance with the contract. This was error. It matters not what name plaintiffs placed upon their cause of action, namely, whether they claimed that it was founded upon breach of contract or negligence in performing the contract or breach of warranty. See Mack v. Snell, 140 N. Y. 193, 199, 35 Ν. Ε. 493, 37 Am. St. Rep. 534. Plaintiffs have elected to sue upon the contract, and not in disaffirmance thereof (May v. Georger, 21 Misc. Rep. 622, 623, 47 Ν. Y. Supp. 1057), and the defendants became entitled on that theory to be credited with the compensation fixed in the contract (Mack v. Snell, supra, 140 N. Y. at page 198, 35 N. E. 493, 37 Am. St. Rep. 534). That such allowance should be made is taken for granted in all similar cases. Walter v. Hangen, 71 App. Div. 40, 41, 75 N. Y. Supp. 683; Olsen v. Henderson, 113 App. Div. 676, 99 N. Y. Supp. 917; Kidd v. McCormick, 83 N. Y. 391. The statement in all these cases of the true measure of damages as the difference in the respective market prices is not intended to be exclusive, but is made merely in contradiction to a claim of a different measure.

***

Indeed, in Mack v. Snell, the complaining party was awarded the difference between "the price agreed to be paid for the shears, and their market value if made according to the contract," the proof being that the completed shears were worthless. The court said, at page 198 of 140 N. Y., at page 494 of 35 N. E. (37 Am. St. Rep. 534), that the award should "represent the value of the contract" to the injured party. In other words, as pointed out in Kidd v. McCormick, supra, at page 397, the plaintiffs are entitled only to compensatory damages, and not to a profit by reason of defendants' failure to perform their contract.

[2] We might merely modify the judgment, by making the appropriate deduction, were it not for another error which requires a new trial. In the complaint, in alleging their first cause of action relating to the "Kolinsky" skins, plaintiffs allege that they were "compelled to sell said skins at a much lesser value and were thereby damaged" in a specified sum per skin. On the trial plaintiffs abandoned this incorrect measure of damage, and undertook to prove the difference in the respective market values. Defendants objected to this proof, but not on the ground that it constituted a variance from the pleadings. Nevertheless, at the close of the plaintiffs' case when plaintiffs asked to amend to conform to the proofs, defendants objected on the specific ground that it was not in accordance with the allegations of the complaint, and asked for at least an adjournment "in order to get somebody here as an expert to prove the difference in the market values." The amendment was allowed without adjournment, and defendants excepted.

While the allowance of the amendment may, under the circumstances, have been technically proper, defendants were entitled to meet the new theory of damages which the amendment set up, and for that purpose should have been granted an adjournment as asked.

Judgment reversed, and new trial granted, with $30 costs to appellants to abide the event, unless defendants stipulate within 10 days to allow judgment to go against them for the amount found below less $323.50 together with appropriate costs, in which event the judgment, as so modified will be affirmed, with $25 costs of this appeal to appellants.

GUY, J., concurs.

MULLAN, J., concurs in separate opinion.

MULLAN, J. (concurring). I agree that the deduction should be made, but I think it cannot be made too clear that the sum of the deduction represents not anything that defendants did, but only what they would have been entitled to had they performed. The deduction does not give any credit or allowance to defendants, who manifestly are entitled to none. It does nothing more than accurately measure the damage plaintiffs actually suffered. The deduction is not under the counterclaim. No counterclaim should have been interposed. The defendants could not sue, therefore they could not counterclaim. Our decision merely lays down what seems to be the clearly just rule that bailors in plaintiffs' situation, who sue in affirmance of the bailment contract, may not treat the contract as alive for that purpose, ask for the difference between the market value of the bailed article as redelivered and as it should have been redelivered, and procure in addition the actually unsuffered damage represented, by what would have been the cost of doing the work properly had the bailees performed.

(178 N.Y.S.)

LEVINE v. ISLER et al.

(Supreme Court, Appellate Term, First Department. July 17, 1919.)

1. SALES272-IMPLIED WARRANTY THAT STRAW HAT BODIES WERE MER

CHANTABLE.

Straw hat bodies, purchased by hat manufacturer from dealers in straw goods, were impliedly warranted to be merchantable, under Personal Property Law, § 96.

2. SALES 285(2)-NOTICE TO SELLER OF BREACH OF WARRANTY.

Where it was customary in the millinery trade for manufacturers to buy merchandise from six months to a year ahead for the summer trade, and meanwhile store it, hat manufacturer, who, having bought straw hat bodies in November, notified seller of breach of warranty upon discovery of breach during following April by dyers, to whose warehouse sellers had sent goods, gave notice within a reasonable time after he knew or ought to have known thereof, within Personal Property Law, § 130.

Mullan, J., dissenting.

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by Nat Levine against Paul A. Isler and another. Judgment dismissing complaint, and plaintiff appeals. Reversed, and judgment directed for plaintiff.

Argued June term, 1919, before GUY, BIJUR, and MULLAN, JJ. Kleiner & Kleiner, of New York City (Lewis Nadel and Joseph Kleiner, both of New York City, of counsel), for appellant. Samuel Sturtz, of New York City, for respondents.

GUY, J. In this action for damages for breach of warranty, the trial judge dismissed the complaint upon the merits. The material facts are uncontradicted. In or about November, 1916, the plaintiff, a manufacturer of ladies' hats, purchased from defendants, importers of and dealers in straw goods, 1,000 dozen of "Wenchow bodies," which are described as coarse straw hats in the raw product converted into a conelike form. Defendants' salesman solicited an order from plaintiff in the prior September, and as a result the plaintiff about the beginning of October visited defendants' store and examined 4 sacks or bales there, part of a consignment of 20 sacks, each containing 50 dozen Wenchow bodies. Plaintiff was satisfied with his examination of the 4 bales, and, on being informed by defendants' authorized representative "that the rest of the bodies run the same," he purchased the 20 sacks; the 4 sacks examined being sent to plaintiff's place of business and the remaining 16 sacks, which were at the public stores or bonded warehouse, being thereafter delivered by the defendants at the warehouse of the dyers in Brooklyn, and all of the bodies were paid for at the agreed price. The uncontradicted evidence shows that the straws purchased were for midsummer hats, and that it is customary in the millinery trade for manufacturers to buy merchandise from 6 months to a year ahead for the summer trade and meanwhile store it. On or about April 5, 1917, the plaintiff was notified by the dyers

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that they discovered upon opening a sack in one of the bales to prepare the same for dyeing, that the bodies were so brittle they would break in the hand and could not be used, which report was verified by plaintiff upon a subsequent examination of the contents of that particular bale; the explanation given being that some preservative had been used to the detriment of the material. Plaintiff thereupon reported the matter to defendants, and demanded another bale, or that defendants return the money paid for the goods, which request was refused. Plaintiff's evidence further tended to show that no injury or damage occurred to the straw while in the custody of the dyers at their warehouse.

[1] A cause of action was clearly established by plaintiff, which was not negatived by any evidence given by defendants. There was not only an implied warranty that the goods were merchantable (Personal Property Law [Consol. Laws, c. 41] § 96), but an express warranty that the quality corresponded with the bodies contained in the 4 sacks examined by plaintiff; and as under section 130 of the statute acceptance of the goods did not discharge the seller from liability in damages, or other legal remedy of the plaintiff for the breach, the only question for determination was whether the plaintiff, within a reasonable time after he knew or ought to have known of the breach, gave notice thereof to defendants.

[2] Upon the facts proven it is clear that the examination was made within reasonable time. As the contents of the sacks contained in the bale in question were worthless, plaintiff was entitled to recover as his damages the amount he paid for that bale, which was $237.50.

It follows that the judgment appealed from must be reversed, with $30 costs, and judgment directed for plaintiff for the sum of $237.50, with appropriate costs in the court below.

BIJUR, J., concurs.
MULLAN, J., dissents.